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Fakir Shaikh Vs. Syed Ali Shaikh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 1181 of 1949
Judge
Reported inAIR1955Cal349
ActsMuhammadan Law
AppellantFakir Shaikh
RespondentSyed Ali Shaikh and ors.
Appellant AdvocateSaroj Bagchi, Adv.
Respondent AdvocatePurushottam Chatterji and ;Rameswar Saha, Advs.
DispositionAppeal dismissed
Cases ReferredSonabashi Koer v. Chaudhury Ramdeo Singh
Excerpt:
- .....without delay he went to the house of defendant 1, and performed the second demand, namely, talab-i-ishhad in the presence of witnesses according to the formalities required by the muhammadan law.2. the defence 'inter alia' was that the allegations of the plaintiff were false and that the formalities enjoined by the muhammadan law were not complied with.3. the trial court dismissed the suit holding that the plaintiff did not observe the formalities as required by law and that the story was a concoction.4. the lower appellate court, however, reversed that decision and held that the plaintiff duly performed the formalities, talab-i-mowasibat and talab-i-ishhad, and as such he was entitled to a decree for pre-emption as prayed for. the suit was decreed: accordingly and hence the.....
Judgment:

Guha, J.

1. This appeal by defendant 1 Fakir Shaik arises out of a suit for pre-emption under the Muhammadan Law instituted by the plaintiff Syed Ali Shaik. The relevant facts are as follows: Defendant 2, Meser, and defendant 3, Tinkari who are sons of one Niyamat Shaik are cosharers in respect of a certain holding and by a registered kobala they sold out their share in the holding to defendant 1, on 3-3-1947. The plaintiff's case, is that on the next day, that is, on 4-3-1947, while the plaintiff was catching fish from the 'doba' in suit, Abdul Gani, son of defendant 1, came up and demanded his share of fish disclosing the purchase by defendant 1. According to the plaintiff, he immediately performed talab-i-mowasibat disclosing his intention to assert the right of pre-emption and thereafter without delay he went to the house of defendant 1, and performed the second demand, namely, talab-i-ishhad in the presence of witnesses according to the formalities required by the Muhammadan Law.

2. The defence 'inter alia' was that the allegations of the plaintiff were false and that the formalities enjoined by the Muhammadan law were not complied with.

3. The trial Court dismissed the suit holding that the plaintiff did not observe the formalities as required by law and that the story was a concoction.

4. The lower appellate Court, however, reversed that decision and held that the plaintiff duly performed the formalities, talab-i-mowasibat and talab-i-ishhad, and as such he was entitled to a decree for pre-emption as prayed for. The suit was decreed: accordingly and hence the present appeal by defendant 1.

5. Various points have been urged before me on behalf of the appellant and it has been contended that there was no strict compliance with the provisions of the Muhammadan law in regard to the performance of the demands, talab-i-mowasibat and talab-i-ishhad, and as such the plaintiff was not entitled to a decree.

6. As regards talab-i-mowasibat, it has been argued that the lower appellate Court did not consider the denial of defendant 1 and his son Abdul Gani of the allegations of the plaintiff. It has also been urged that as there is evidence to the effect that the name of the seller was not mentioned by Abdul Gani when he came to the 'doba' first and disclosed about the purchase, this was a fatal defect in the case of the plaintiff. In this connection my attention has been drawn to a passage in the cross-examination of P. W. 4 Nazimuddin. The passage runs thus: 'Out of us none enquired of the defendant 1 from whom he purchased the tank and at what price.....' This would appear to refer to the second demand, namely, talab-i-ishhad. There is, however, the evidence of the plaintiff himself that when he made the first demand, talabimowasibat, Abdul Gani told him that purchase had been made from Meser, and Tinkari. They were the vendors in the case. In view of this evidence there is really no foundation for the criticism that there was any fatal defect in so far as Talab-i-mowasibat is Concerned.

7. In regard to the second demand, namely, talab-i-ishhad, various criticisms have been levelled by the learned Advocate for the appellant. It has been contended, firstly, that the talab-i-ishhad, said to have been performed in the present case, did not comply with the requirements of law because it was not performed upon the disputed land. Secondly, it has been contended that there was no compliance with another requirement of law in that talab-i-ishhad was not performed in the presence of the person who was in possession of the land, whether it might be the vendors or the vendee. In this connection reference has been made to the evidence of defendant 1 who has deposed that he had not taken possession of the land as also the evidence of his son D. W. 2, Abdul Gani who has also deposed in similar strain.

My attention was also invited to the case of --'Chamroo Pasban v. Puhlwan Roy', 16 Suth WR 3 (A). The head note of the case runs thus: 'To establish the right of pre-emption, the tullabaishtishad or affirmation before witnesses, must be performed in the presence of the person in possession of the lands, whether it be the vendor or the purchaser.'

It is contended that, therefore, that the vendors being in possession and the talab-i-ishhad not having been performed in their presence, there was no due compliance with law. It is necessary in this connection to refer to certain authorities of Muhammadan law so far as this particular point is concerned.

According to Bailie's Digest of Muhammadan Law:

'to give validity to the tulab-i-shad, it is required that it be mode in the presence of the purchaser, or seller, or on the premises which are the subject of sale.' (page 483).

In Sir Dinshaw Mulla's Principles of Mahomedan Law (Edn. 13) practically the same observation is made. It is stated there that

'no person is entitled to the right of pre-emption unless he has made a formal demand either in the presence of the buyer or the seller or on the premises which are the subject of sale.' (page 221).

Practically to the same effect is the case of --'Rujjub Ali v. Chundi Churn', 17 Cal 543 (FB) (B). It is stated in this case that 'the latter consists in the party going upon the lands the right of pre-emption to which he claims, or to the seller or purchaser, and saying that he is a claimant of pre-emption, that he has already asserted his claim, and that he continues to do so, and at the same time calling witnesses to the fact of his having made it.'

8. Reference may now be made to the Hedaya in this connection. The following quotation from Hedaya is pertinent:

'It is, therefore, necessary afterwards to make the Talab-i-shad wa Takreer, which is done bythe Shafee taking some person to witness, --either against the seller, if the ground sold be still in his possession, or against the purchaser, -- or upon the spot regarding which the dispute has arisen, ..'

It will be noticed that so far as the seller is concerned, it is qualified by the phrase 'if the ground sold be still in his possession.' Why this qualification was made has been pointed out in the case of -- 'Abdur Rasheed v. Md. Idris Choudhuri', AIR 1946 Cal 135 (C) where at pp. 137-138 of the. Report the relevant passage from the Hedaya has been quoted. Syed Ameer Ali in his Mahomedan Law apparently follows the Hedaya, as the following passage will show:

'For the performance of the ceremony of Talab-i-istishad the pre-emptor mast take some witnesses with him to the vendor, it the property sold' be still in his possession, or to the vendee or to the property which is the subject-matter of the claim.' (Page 723 at page 725, Vol. 1,Edn. 4).

9. It is clear from the authorities, referred to above, that though there is some divergence of opinion as to whether the qualification 'it he be still in possession of the property' is applicable so far as seller is concerned, there is no such divergence on the point so far as the purchaser is concerned and so far as the purchaser is concerned it seems to me to be clear upon the authorities that the qualification, referred to above, is not applicable at all. In this connection the following quotation from Ameer Ali on Mahomedan Law (Edn. 4, Vol. 1) is very pertinent,

'In order to entitle the claimant to perform the second demand in the presence of the vendee it is not necessary that he should be in possession of the property in respect of which the right is claimed. (Page 725).

In this connection Ameer Ali has referred to several cases, one of which is the case of 17 Cal 543 (FB) (B), referred to earlier.

This being the position, I find it somewhat difficult to appreciate the case of 16 Suth WR 3 (A), the head-note of which case has been referred to already and I do not feel pressed to follow that case except in so far as that case lays down that the word 'against' as used in the Hedaya means 'in the presence of'. Be that as if may, so far as the present case is concerned, it is not the case of the plaintiff that he made the demand of talab-i-ishhad in the presence of the sellers. His case is that this demand was made in the presence of the purchaser, namely, defendant 1, the present appellant and so far as this case is concerned it is not essential that the purchaser must be in possession of the land.

I may mention that it was also argued on behalf of the appellant that the word 'or' in the passage of the Hedaya, referred to above, really means 'and'. I do not find, however, any warrant for this contention. It is clear upon the authorities, that the word 'or' has been used in the disjunctive sense; in other words, it is sufficient if talah-i-ishhad is performed in the presence of either the seller, if the ground sold be still in his possession, or in the presence of the purchaser or upon the spot regarding which the dispute has arisen. That this is the true meaning of the passage is also clearfrom the following passage of Ameer Ali's Mahomedan Law:

'The second condition is that the pre-emptor should, with as little delay as is possible, under the circumstances, repeat before witnesses his demand, (a) either on the premises in dispute, or (b) in the presence of the vendor or (c) of the vendee, calling on the witnesses to bear testimony to the fact.'

10. It has further been contended on behalf of the appellant that the talab-i-ishhad was not, in the present case, duly performed inasmuch as the subject-matter of the demand was not specifically disclosed. So far as this point is concerned, Sir Dinshaw Mulla in his Principles of Mahomedan Law does not appear to have laid any stress upon it. That it is, however, a requirement of the Muhammadan law is clear from other authorities. The following passage occurs in the Hedaya:

'The manner of claim by affirmation and talking to witness is, the claimant saying 'Such a person has bought such a house, of which I am the Shafee; I have already claimed my privilege of Shaffa and now again claim it: be therefore witness thereof.'

It is reported from Aboo Yoosaf that 'it is requisite the name of the thing sold, and its particular boundaries be specified; because a claim is not valid unless the thing demanded be precisely known.' (Page, 572).

According to BaiJIie's Digest, 'the person claiming the right of pre-emption should say, in the presence of one or other of these, 'such a one has purchased this mansion' or 'a mansion (specifying its boundaries), and I have demanded the pre-emption, and now do demand it....' (Page 485).

The following quotation from Ameer Ali's Mahomedan Law is also partinent:

'And there, in the presence of the witnesses, he must say to the following effect: 'Such a person bought such a property (sufficiently indicating the same) of which I am the Shafi'.' (Page 725).

Reference may in this connection be also made to the case of -- 'Sonabashi Koer v. Chaudhury Ramdeo Singh', : AIR1951Pat521 where the authorities were quoted and it was observed that the authorities required that the property in respect of which the demand is being made should be specified; at the same time, it was pointed out that it is not contemplated that in the talab-i-ishhad full details of the property should be given. It was further observed in this case that there would be sufficient specification of the property if the 'talab' contains a description which makes the property (sic)ptifiable; for instance, if the pre-emptor gives a general description of the property mentioning that it has been sold by such and such person to such other persons and states that he claims it by right of pre-emption and that he has already made his first demand, that is sufficient. The substance of the matter is that the specification of the property should be such as to make they property identifiable. If this requirement of the law is not compiled with, the suit for pre-emption must fail.

11. It is next to be seen whether this requirement of law as regards the specification of property was complied with in the present case. The suit property consists of three plots out of within two were 'bhiti' plots with an area of 3 decimals while the, third plot is a doba measuring 5 decimals out of 15 decimals. These plots appear to have been recorded in C. S. plots Nos. 284, 328 and 326/506 of C. S. khatian 180.

12. (The judgment then referring to the contention on behalf of the appellant that the talab-i-ishhad was bad in the absence of sufficient specification of the property pointed out that this aspect of the case was not gone into by either of the courts below and in the circumstances it was necessary to refer to the evidence bearing on the point. After discussing the evidence his Lordship concluded that: 'Whatever be the actual term used by the witnesses for the plaintiff, whether it be tank, ditch or 'doba' in suit or lands in suit, it seems to be abundantly clear from the materials oh the record that the identity of the property for which pre-emption was being sought was sufficiently disclosed. In my opinion, on an analysis of the evidence, it will be legitimate to hold that the pre-emptor described his property in such a way that others, -- at least, defendant 1, -- could easily identify it. I am not, therefore, prepared to hold that the talab-i-ishhad in the present case suffers from the defect that the subject-matter of it , was not specifically described.' After shortly dealing with certain other points raised on behalf of the appellant, his Lordship proceeded:)

13. The only other point that he urged before me was that the judgment of the appellate Court was not a proper judgment of reversal. I do not think there is any real ground for this criticism. The learned Appellate Judge, has dealt with the case in detail and it does not appear to me that he has missed any real point of importance which was dealt with by the trial Court. It is true that in his appraisal of the evidence he has taken a view directly contradictory to the view of the trial Court but that cannot be a valid ground for upsetting the decision of the appellate Court.

14. The points urged before me having failed,the appeal is dismissed. In the circumstances, however, no order is made as to costs. Leave to appealunder Clause 15, Letters Patent is asked for and is refused.


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